Since well before the Sedona Conference published its Cooperation Proclamation, it was well-known that cooperation between requesting and responding parties was crucial to an efficient and cost effective discovery process. Where parties cooperate, discovery disputes are limited, narrowed and, sometimes, even eliminated. Where parties do not cooperate, there are more disputes, they are uglier, and the costs escalate. This ideal of cooperation has been incorporated into the Federal Rules of Civil Procedure. Rule 1 requires the parties to construe, administer and employ the rules “to secure the just, speedy and inexpensive determination” of an action. The Advisory Committee Note to Rule 1, noting that “most lawyers and parties cooperate to achieve these ends,” goes on to state that “[e]ffective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure.” (emphasis supplied). The question then is not whether cooperation is good, but rather how parties and the court can encourage and enable cooperation, especially where the parties and counsel are aggressively antagonistic.
The most important factor in generating cooperation in discovery is building trust between opposing counsel. Without trust that the opposing counsel will act in good faith, reasonably and fairly, counsel will be glacially slow to reach agreements, which will be drawn narrowly and excruciatingly documented. Without trust, counsel will be afraid to extend any courtesy, fearing (or expecting) that it will not be reciprocated. Without trust, counsel fear that any slip or any concession in discovery will be converted into a weapon to be used to undermine a client’s substantive case and leverage settlement or dismissal.
